Issue: May a
Judicial Official who is not a senior judge or judge
trial referee serve as a non-voting member of
observer on the State Post-Employment Benefits
Commission, and if not, may a Judicial Official, as
part of the Judicial Branch’s cooperation and
provision of support to that Commission, attend
meetings and volunteer information for consideration
by the Commission?

Response:
Based upon the information presented, the Committee
members unanimously determined as follows:

(1)(a) Canon 5(g)
provides that a “judge should not accept
appointment to a governmental committee,
commission or other position that is concerned
with issues of fact or policy on matters other
than the improvement of the law, the legal
system, or the administration of justice.” Based
upon the foregoing, a judge is not permitted to
serve as either a voting or non-voting member of
the Commission.

(1)(b) While a judge is not
permitted to serve on the Commission, a senior
judge or judge trial referee may serve as a
member because the Compliance section of the
Code of Judicial Conduct states that senior
judges and judge trial referees “are not
required to comply with Canon 5 (d) and (g).”
However, a senior judge or judge trial referee
is required to comply with other applicable
provisions of the Code of Judicial Conduct and
may serve on a governmental commission only if:
(1) such participation is consistent with Canon
2(a)’s mandate to “act at all times in a manner
that promotes public confidence in the integrity
and impartiality of the judiciary”; (2) service
on the Commission does not take precedence over
the judicial activities of the senior judge or
judge trial referee, see Canon 3; and (3) legal
advice is not provided to the Commission by the
senior judge or judge trial referee, see Canon
5(f).

(2) A judge who may not
otherwise serve on the Commission may attend the
Commission’s meetings as a representative of the
Judicial Branch, in order to respond to
questions and provide information on matters
related to the Judicial Branch, including but
not limited to the role that pensions and
post-employment benefits play in attracting and
retaining qualified members of the judiciary.
See Canon 4(a)(2). Any judge so appearing must
be careful not to engage in or create the
appearance of engaging in political advocacy or
create the appearance that he/she is effectively
a member of the Commission.